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U.S.-India nuclear deal: A missile rider

The nuclear deal-related U.S. law aims to deny India space-related dual-use technology and items even as it demands New Delhi unilaterally but formally adhere to MTCR. What has this to do with nuclear energy?

Brahma Chellaney

The United States, oddly, still maintains greater technology controls against the world’s largest democracy than against communist China, whose January 11 satellite-killing weapon test has underscored for India a pressing imperative: to accelerate the development of its space and missile capabilities. Space-based assets today are critical for civil and military communications, intelligence, navigation and missile guidance. Yet, not only is America loath to undertake strictly civilian space cooperation with India of the kind Russia is proud to do, but also its legislature has used the nuclear deal to decree that India not be let off the hook on dual-use space technology controls.

As the implications of the new U.S. legislation on the nuclear deal sink deeper, an undertow of concern is prompting the Indian government to brace itself for a long, precarious course. Speciously billed as the “enabling legislation,” the law doesn’t enable the deal: it only sets the India-specific preconditions that need to be fully met before Congress grants approval at a future date, subject to the already-legislated post-implementation conditions.

Despite Prime Minister Manmohan Singh’s hosannas for the deal, he and the external affairs minister acknowledge that several provisions of this legislation are either “prescriptive” in ways incompatible with the July 18, 2005, agreement-in-principle, or “extraneous” and incongruous to engagement “between friends.” Yet, other than telling Parliament that it “has taken note of certain extraneous and prescriptive provisions in the legislation,” the government has chosen not to publicly identify a single such rider in the so-called Hyde Act.

Dr. Singh indeed told the Lok Sabha last month that “there are areas which continue to be a cause for concern, and we will need to discuss them with the U.S. administration before the bilateral cooperation agreement can be finalized.” How can India’s bona fide concerns about the new law, with its series of congressionally enforceable conditions, be addressed through discussions with the U.S. executive branch, whose own hands the legislation ties? Also, if India is to shield itself from the U.S. law’s “extraneous and prescriptive provisions,” shouldn’t New Delhi at least put on record its specific objections? To be sure, nuclear chief Anil Kakodkar has done well to speak out on same aspects.

One “extraneous and prescriptive” provision mandates the continued applicability of U.S. missile sanctions law to India — a barely disguised attempt to deny space-related dual-use technology and items. At the same time, the legislation makes any Indian infraction of the Missile Technology Control Regime guidelines a cause for re-imposition of civil nuclear sanctions.

First, as is obvious, this has no connection at all with a civil nuclear energy deal. Second, by bringing this issue within its purview through a nuclear cooperation-related legislation, Congress is making it tougher for India to access sensitive technologies. Until the enactment of the Hyde Act, the lifting of the space-related technology controls against India had been an executive-branch prerogative. And third, by mandating that the deal be terminated if India were to violate MTCR guidelines, Congress has laid bare that the deal has less to do with energy and more with the full range of U.S. non-proliferation interests.

This provision, in fact, exemplifies how the new U.S. law, in seeking to conditionally allow India to import commercial power reactors and fuel, aims to hold this country perpetually to a series of good-behaviour stipulations extraneous to the deal’s stated raison d’être. The provision also goes against the rationale of the Next Steps in Strategic Partnership between the U.S. and India — an initiative that supposedly paved the way for the nuclear deal.

The NSSP was founded to help substantially ease U.S. controls on the export of high-technology goods to India, and to permit civilian nuclear and space cooperation. These three issues came to be known as the “trinity,” which later became a “quartet” with the U.S. addition of missile defence. The fourth issue, however, didn’t remain a priority for too long because the Americans realized that missile-defence cooperation with India could chip away at the credibility of the nuclear-deterrent posture of their strategic ally, Pakistan.

Without significant progress in opening U.S. high-technology and space trade with India, the State Department, curiously, announced the “successful completion” ofthe NSSP process on the eve of the nuclear deal’s unveiling. In the commercial space area, for instance, NSSP had yielded only two Indo-U.S. conferences and modest modification of U.S. export-licensing requirements, along with the Indian Space Research Organization’s removal from the U.S. blacklist, innocuously named the “Entity List.” Post-NSSP, six ISRO subsidiaries were also removed, but four others still remain blackballed.

The NSSP’s forced conclusion — after Washington had shifted ground in the negotiations on some promises — appeared designed to leverage U.S. parleys with India by compartmentalizing each of the “trinity” subjects and bringing into greater play U.S. strategic and commercial interests over a wider range of issues. As the State Department “fact-sheet” of July 18, 2005, put it: “Completion of NSSP … paves the way for greater cooperation on strategic, energy security, and economic matters.”

Indeed, when the nuclear deal was made public, it constituted just four paragraphs in a long joint statement that roped in India as a collaborator on several fronts — from a “Global Democracy Initiative” to a military-to-military “Disaster Response Initiative” for operations in “the Indian Ocean region and beyond.” The statement announced a far-reaching “Knowledge Initiative on Agriculture” embracing both research and outreach in India, as well as new bilateral dialogues on commerce, finance and energy. The security issues had been dealt with in a new defence-framework accord three weeks earlier, with New Delhi agreeing not only to “conclude defence transactions” and share intelligence with the U.S., but also to participate in U.S.-directed “multinational operations” and join the U.S.-led non-proliferation regime.

Actually, the most onerous technology sanctions India has endured for long are not in the nuclear-energy realm but centre on advanced and dual-use technologies. Where export controls against India can be relaxed through executive action, such as in high technology or civilian space, the U.S. has dragged its feet. But where complex action was needed, including congressional waivers from existing U.S. legal provisions and a special exemption by a 45-nation cartel, it concluded a nuclear deal after wringing a heavy price out of India.

Today, the U.S. employs every export control in force as a bargaining chip. In each of the “trinity” areas, the U.S. has sought to impose conditions or extract commitments that go beyond its stated reasoning for maintaining stringent technology controls — concerns that the transfers might be diverted to military applications or leaked to a third party. In the space area, India has tightly segregated its satellite-launch and missile programmes and put in place strict export controls.

Yet the U.S. is still reluctant, despite lengthy negotiations that began much before the nuclear deal, to build broad commercial space cooperation with India by lifting its export controls on U.S.-made components and entering into equitable launch-services and technology-safeguards accords. Washington still draws back from the much-promised launch-services agreement despite securing Indian guarantees against misuse or re-export of technology.Similarly, the U.S.-India High-Technology Cooperation Group, meeting since 2003, has still to create conditions for hassle-free high-technologycommerce.

Now, in a new twist, the U.S. Congress has cross-linked its action in one “trinity” area with continual U.S. controls against India in another. The Hyde Act stipulates that U.S. missile sanctions law, with its prohibition of dual-use space exports, will still apply to India even after it meets the required standard of “unilateral adherence” to the U.S.-fashioned MTCR. It is as if Congress is intent on keeping some aspects of the bilateral relationship trapped in the past. How can a strategic partnership be built with one side seeking to sustain penal measures against the other?

The Act draws a creative distinction between an “MTCR adherent” and a “unilateral adherent” to expressly keep India within the sanctions purview of Section 73 of the U.S. Arms Export Control Act. That section decrees wide-ranging trade and other sanctions in case MTCR-controlled items are transferred. But in keeping with MTCR’s status as a cartel that regulates transfers outside the league but not within, Section 73 is not applicable to any export “that is authorized by the laws of an MTCR adherent” or is for “an end user in a country that is an MTCR adherent.”

The Hyde Act’s Section 107 flatly holds: “Congress finds that India is not an MTCR adherent for the purposes of Section 73 of the Arms Export Control Act.” To purge any ambiguity, the Act places on record, through its accompanying Explanatory Statement, Secretary of State Condoleezza Rice’s assurance that because India has “committed to unilaterally adhere” to MTCR, it “would not be considered an ‘MTCR Adherent’ as defined under Section 73.”

Israel, too, is a unilateral adherent to MTCR, but — as underlined by U.S. technology transfers, among others, to the Israeli Arrow anti-ballistic missile programme — neither the U.S. executive branch nor legislature has sought to draw such a contrived distinction in its case. In fact, if America were to apply to India the same standards it does to Israel, it will throw open not only commercial space cooperation but also high-technology commerce with New Delhi.

In singling out India, the Hyde Act goes beyond the Arms Export Control Act, which defines an “MTCR adherent” as either “a country that participates in MTCR or that, pursuant to an international understanding to which the United States is a party, controls MTCR equipment or technology in accordance with the criteria and standards set forth in MTCR.” India cannot “participate” in MTCR as long as the cartel — like the Nuclear Suppliers’ Group — declines to admit it as a full member. But given its deal-related commitments, India will certainly fit the second criterion as an MTCR adherent. Yet the Hyde Act peremptorily dismisses that, even as it peddles the hope that India one day could “enjoy the benefits” of MTCR membership.

Equally brassily, the legislation aims to strip India’s July 18, 2005, commitment to abide by MTCR and NSG guidelines of its voluntary quality and turn it into a formal adherence involving the implementation of “specific procedures.” If India were to meet the Act’s condition to unilaterally adhere to these cartels through formal procedures rather than a voluntary public declaration, it will not only undermine its leverage to gain membership, but also become bound by all future cartel decisions, however adverse.

China, denied entry to MTCR thus far, stays a voluntary adherent, spurning formal procedures. Moreover, it spurns the revised, more-stringent MTCR guidelines, recognizing only the original guidelines and annex framed in 1987 when the cartel was secretly formed by America, Britain, Canada, France, Italy, Japan and West Germany. But as underscored by its continuing covert missile assistance to Pakistan, China’s observance of even the original guidelines is more in the breach.

In contrast, the Hyde Act demands through its Section 104(b)(6)(B)that India harmonize its export laws and regulations with MTCR’s current guidelines and “practices,” with its Explanatory Statement amplifying that a “unilateral adherent” is also required to abide by “any subsequent changes to the MTCR guidelines and annex.” The perils of an open-ended Indian commitment have been underlined by the move of some MTCR states to institute what they call the International Code of Conduct Against Ballistic Missile Proliferation — a sort of mini-NPT to cover missile development.

In mandating the continued applicability of missile sanctions law to India, the U.S. Congress has sought to underpin the American goal to constrain the Indian development of long-range missiles. Without building longer-range ballistic missiles, India’s nuclear deterrent will remain largely of subcontinental relevance. Hobbling the growth of Indian delivery capability thus holds the key to the U.S. objective of preventing the emergence of India as a full-fledged nuclear-weapons state.

That objective is mirrored, as Dr. Kakodkar has put it, in the Hyde Act’s “fairly large number of sections which essentially seek to, sort of, contain or cap the Indian strategic programme.” Earlier, that objective had found expression in Dr. Rice’s accent on Indo-Pakistan “nuclear balance” and the public demand on Indian soil of her assistant secretary, Richard Boucher, that India “absolutely” define its deterrent in the sole context of Pakistan, now the third-largest recipient of U.S. foreign aid.As shown by America’s ongoing multibillion-dollar lethal arms transfers to Islamabad, with a huge sale of 500 Amraam and 200 Sidewinder missiles being announced just last week, Washington still uses Pakistan to countervail India, even as it seeks to frame an option to leverage its India ties against China.

The Hyde Act also seeks to hold India to an exceptional standard by linking civil nuclear cooperation to its ensuring inter alia that no “equipment or technology not consistent with MTCR guidelines” is exported “by an Indian person.” The nuclear deal’s continuation thus hinges on India’s good conduct on the missile front! But even with exemplary behaviour, India is to be denied access to space launch vehicle and unmanned aerial vehicle technologies, propulsion and propellant components, launch and ground support equipment, and other MTCR-controlled, space-related items.

To the U.S., strategically leveraging its India ties vis-à-vis Beijing does not mean helping India to militarily emerge as China’s peer. U.S. policy has no intent of compounding the ascent of China as a global military power by encouraging or acquiescing to India’s rise as another military giant with intercontinental-range weaponry. Indian romanticists have yet to grasp a simple fact that no great power in history has helped build another great power. In fact, great powers work to deter the rise of another great power.

While the nuclear deal will permit the U.S. to have its cake and eat it too, India is being called upon to open itself to action from both ends of the MTCR stick — to formally adhere to the regime from outside, yet remain one of its principal targets. This is just one example of how the vaunted deal squarely puts India on the debit side of the ledger. What was intended to herald a new era in U.S.-India relations is being appropriated into a win-win deal for one side and a loss-loss proposition for the other. In this situation, India’s strategic interests have to prevail over its diplomatic interests.